The Issue Whether Respondent, Florida Housing Finance Corporation’s (“Florida Housing”), decision to award funding, pursuant to Request for Applications 2017-111 (“the RFA”), to HTG Sunset, LLC (“Sunset Lake”); HTG Creekside, LLC (“Oaks at Creekside”); and Harper’s Pointe, LP (“Harper’s Pointe”), is contrary to its governing statutes, rules, or the RFA specifications; and, if so, whether the decision is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Petitioner Madison Oaks is the Applicant entity for a proposed affordable housing development to be located in Osceola County, Florida. Petitioner Sterling Terrace is the Applicant entity for a proposed affordable housing development to be located in Hernando County, Florida. American Residential and Sterling Terrace are Developer entities as defined by Florida Housing in Florida Administrative Code Rule 67-48.002(28). Sunset Lake, Oaks at Creekside, and Harper’s Pointe are all properly registered business entities in Florida in the business of providing affordable housing. Florida Housing is a public corporation organized pursuant to chapter 420, Part V, Florida Statutes, and, for the purposes of these proceedings, an agency of the State of Florida. Through the RFA, Florida Housing proposes to award an estimated $10,978,942 in Housing Credit Financing for Affordable Housing Developments located in medium and small counties (“affordable housing tax credits”). The RFA outlines a process for selecting developments for funding. Section Five B. outlines the Selection Process, and subsection 2. is the Application Sorting Order. On November 5, 2017, Florida Housing received 167 applications in response to the RFA. Madison Oaks, Sterling Terrace, Sunset Lake, Oaks at Creekside, and Harper’s Pointe timely submitted applications seeking funding to assist in the development of multi-family housing in medium counties. Florida Housing selected a review committee to score all submitted applications. The review committee issued a recommendation of preliminary rankings and allocations, and the Board of Directors of Florida Housing approved these recommendations on May 4, 2018. The Board found that the parties to this proceeding all satisfied the mandatory and eligibility requirements for funding, but awarded funding to Intervenors based upon the ranking criteria in the RFA. If Sterling Terrace can demonstrate that any two of the three Intervenors should not have been recommended for funding, it and Blue Sunbelt, LLC, will displace them as applications selected for funding. If Madison Oaks can demonstrate that all three Intervenors should not have been recommended for funding, Sterling Terrace and Blue Sunbelt, LLC, will displace them as applications selected for funding. Sunset Lake Section Four A.5.e.(3) of the RFA allows applicants to receive up to four points for proximity to certain community services. The RFA provides that applicants in medium counties must receive at least seven points to be eligible for funding, and at least nine points to be eligible for a Proximity Funding Preference. One of those community services is public schools, which are defined as follows: A public elementary, middle, junior and/or high school, where the principal admission criterion is the geographic proximity to the school. This may include a charter school, if the charter school is open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. (emphasis added). Sunset Lake identified the Jewett School of the Arts (“Jewett School”) as a public school, received four points for proximity, and as a result, was eligible for the Proximity Funding Preference. The Jewett School is a magnet school within the Polk County Florida School District. The Jewett School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Jewett School does not meet the definition of “public school.”4/ If the Jewett School does not meet the definition of a “public school,” Sunset Lake would not be entitled to four points for proximity to community services. As a result, it would have a total of seven points for proximity, and while it would remain eligible, it would lose the Proximity Funding Preference. As a result, Sunset Lake would not have been ranked as highly and would not have been recommended for funding. The Jewett School does not meet the RFA definition of “public school” because geographic proximity to the school is not the principal admission criterion. Although a student must live in Polk County Schools’ Magnet Zone B to apply for admission to the Jewett School, the principal admission criteria is a random lottery process. Geographic location within the Polk County magnet school zones is a threshold issue which qualifies a student to apply for admission. However, the magnet school decision-making process entails a subsequent elaborate demographic diversity analysis, sorting based on the outcome of that analysis, and, ultimately, a random lottery drawing which determines final admission. The Jewett School admission process is contrary to Florida Housing’s primary purpose of awarding proximity points to proposed housing developments--to ensure the intended residents can, in fact, use the services in proximity to the development. Sunset Lake is not entitled to four points for proximity to community services and should not be awarded Proximity Funding Preference. As a result, Sunset Lake should not have been ranked as highly and should not have been recommended for funding. Oaks at Creekside Oaks at Creekside identified the Manatee Charter School (“Manatee School”) as a public school, received three points for proximity, and, as a result, was eligible for funding but not for the Proximity Funding Preference. The Manatee School is a charter school located in Bradenton, Florida. The Manatee School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Manatee School does not meet the definition of a “public school.”5/ If the Manatee Charter School does not meet that definition, then Oaks at Creekside is not entitled to three points for proximity. As a result, it would have only six total proximity points, and would not be eligible for funding. Florida Housing maintains that a charter school must meet both parts of the definition of a public school in order for a proposed development to receive proximity points based on proximity to that school. That means a charter school must (1) use geographic proximity as the primary admission criteria, and (2) be “open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.” Geographic proximity is not the primary admission criterion for the Manatee School. On the contrary, the Manatee School is open for admission regardless of geographic proximity thereto. The Manatee School operates pursuant to a contract with the Manatee County School Board, and is “open to any student residing in the Manatee County School District, students covered in an interdistrict agreement and students as provided for in Section 1002.33(10), Florida Statutes (2010).”6/ The Manatee School operates a “controlled open enrollment” process. The application period opens in early January and closes at the end of February, and the School accepts students from any school district in the state whose parent or guardian can provide transportation to the school, if the school has not reached capacity. This process is sometimes referred to as “school choice” and is mandatory pursuant to section 1002.31, Florida Statutes.7/ The Manatee School has enrolled students throughout Manatee County, as well as from adjoining Sarasota County. Historically, the Manatee School has not reached capacity. Once the School reaches capacity in any one grade level or class, students will be selected by a system-generated, random lottery process. The term “radius area” is not defined in the RFA or in Florida Housing’s rules. Florida Housing introduced no evidence regarding the meaning of the term “radius area” within the definition of “public school.” When questioned about the meaning, Marisa Button, Florida Housing’s Director of Multifamily Allocations, stated she did not know, but “[I] assume it means if the charter school has a radius area. I don’t know.”8/ The term “radius” is defined as “a bounded or circumscribed area.” Merriam-Webster Online, www.merriam- webster.com (2018). The bounded or circumscribed area for admission to the Manatee School is the Manatee County School District, pursuant to its contract. The Manatee School is open to appropriately-aged children in the radius area who apply. The Manatee School does not apply additional requirements for admission, such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.9/ The Manatee School does provide admissions preferences to students of active duty military personnel, siblings of a student already enrolled, siblings of an accepted applicant, children of an employee of the School, and children of a charter board member. Each of these preferences is authorized pursuant to section 1002.33(10)(d). The preferences are not additional requirements for admission to the Manatee School. The Manatee School meets the second part of the definition of “public school” for purpose of qualifying Oaks at Creekside to receive proximity points pursuant to the RFA. Harper’s Pointe Madison Oaks argues Harper’s Pointe is ineligible for funding pursuant to the RFA because the Harper’s Pointe development site is a “scattered site,” and Harper’s Pointe did not identify the site as such and comply with the RFA requirement to designate latitude and longitude coordinates for both sites.10/ Rule 67-48.002(105) defines “scattered sites” as follows: (105) “Scattered sites,” as applied to a single Development, means a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a “Scattered Site”). For purposes of this definition “contiguous” means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement, provided the easement is not a roadway or street. All of the Scattered Sites must be located in the same county. Section Four A.5.c. of the RFA states: “The Applicant must state whether the Development consists of Scattered Sites.” Section Four A.5.d. of the RFA requires that applicants provide latitude and longitude coordinates for the Development Location Point and any scattered sites. Section Five A.1. provides that “only items that meet all of the following Eligibility Items will be eligible for funding and consideration for funding selection.” Among the items listed are “Question whether a Scattered Sites Development answered” and “Latitude and Longitude Coordinates for any Scattered Site provided, if applicable.” Harper’s Pointe did not state in its application that the development consists of scattered sites, and did not provide separate latitude and longitude coordinates for scattered sites. Harper’s Pointe’s proposed development site, as identified in its Site Control Documents, consists of land located within a platted tract of property. The plat recorded in Alachua County indicates that the site is bisected by a platted 50-foot street easement running east/west through the property. The parties stipulated the street has never been constructed. Although portions of the east/west easement area show signs of having been improved at some time in the past, the easement area has never been paved, and is currently impassible by car or truck due to vegetation in the easement area. Even if the easement area were improved, there is no roadway to the west of the property to which it would connect. A fence runs along the property line and the property beyond the fence is platted residential lots accessed by Northeast 22nd Street. An existing roadway, Northeast 23rd Avenue, terminates at the eastern property line just south of the east/west easement. The City has placed barriers at that property line prohibiting access to the property from Northeast 23rd Avenue. If the platted street is a “roadway or street” as those terms are used in rule 67-48.002(105), the site would meet the definition of a “scattered site.” Ms. Button testified on behalf of Florida Housing that the property meets the definition of a scattered site because “there is an easement that is a road or a street” that bisects the property. Ms. Button first testified that Florida Housing’s determination did not depend on whether a roadway or street is actually constructed within the easement, but rather, “it goes back to the easement, whether there is an easement that is a roadway or street.” Ms. Button’s testimony seemed logical enough. If the easement were a street easement, access between the northern and southern portions of the development site would be constrained. By contrast, if the easement were a conservation or utility easement, there would be no impairment of access between portions of the development site. However, on cross examination, Ms. Button testified that, in making the determination whether an easement for a road or street existed, Florida Housing would consider a number of other factors, including whether a roadway was actually constructed within the easement, whether there were physical obstructions preventing access to the “prospective” roadway or street, and whether the public had a right to use the “prospective” roadway or street. Ms. Button did not testify with specificity what factors she considered in making the determination that the easement, in this case, was “a roadway or street.” Ms. Button’s direct-examination testimony was conclusory: “Based on the documentation we received, there is an easement that is a road or street.” On direct examination, her determination appeared to be based solely on the plat designation of a street easement. On cross-examination, however, Ms. Button testified that “a street designated . . . on a plat could be evidence of the existence of a scattered site.” (emphasis added). Moreover, Ms. Button testified that Florida Housing could consider whether a roadway or street was actually constructed, whether there were obstructions to its use, and whether the public had a right to use the purported roadway. Ms. Button’s testimony that the Harper’s Point development site was a scattered site was equivocal, and the undersigned does not accept it as either reliable or persuasive.11/ There is no physical roadway or street constructed within the easement. While there is some evidence that some portions of the easement area were improved in the past, said improvement was at least 25 years old. The current condition of the property is fairly heavily wooded. To the extent a “path” exists on the property, it is not passable by a standard four- wheeled vehicle. Moreover, there are physical barriers preventing vehicular access to the property from the adjoining street to the east. There is no access to the property from the residential development to the west of the property. There is not an improved area preventing access from the northern to the southern portion of the development site. There is no structure built within the easement which would have to be demolished in order to build the project on the development site as a single parcel. Based on the entirety of the reliable evidence, the Harper’s Pointe development site is not a “scattered site” as defined in the RFA. Madison Oaks failed to prove that Florida Housing’s initial determination to award tax credits to Harper’s Pointe, pursuant to the RFA, was incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing issue a final order finding (1) that its initial scoring decision regarding Sunset Lake was erroneous, and awarding funding to the applicant with the next highest lottery number; and (2) awarding funding to Oaks at Creekside and Harper’s Pointe, pursuant to its initial scoring decision. DONE AND ENTERED this 23rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2018.
The Issue Whether the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealings by trick, scheme or device, culpable negligence and breach of trust in a business transaction based on representations or remarks made by the Respondent to Mr. and Mrs. Springer.
Findings Of Fact At all times relevant to this matter, Respondent, Irene H. Pieragowski, was a licensed real estate salesman employed by Geiger Real Estate Corporation. At some time prior to May 5, 1986, Respondent obtained a listing agreement from William and Beverly Walker to sell certain real property owned by the Walkers which consisted of two and one-half acres improved by a single-family residence. On the Sunday before May 5, 1986, Respondent held an open house at the property. The house had been advertised, and the ad indicated that the property was a single-family residence located on a two and one-half acre tract. Joseph and Ceresa Springer saw the home advertised in a real estate booklet. When they called about the home they were advised of the open house and decided to attend. The Springers were the first people to arrive at the open house. Respondent was late getting there, and she was moving about trying to open the house during the time the Springers were there. Respondent put information about the house on a counter. The information included a survey of the property and three deeds. Respondent explained that the initial acre was given to Mrs. Walker by Mr. Mickler, her father, and the house was built on that original acre. Subsequently, Mr. Mickler deeded to Mrs. Walker an additional one-half acre which was located in front of the home, and another acre located behind the house. Respondent explained that the house had been originally offered for sale with just one and a half acres of land, but, since the house had not sold, the additional acre of land had been included and the price had been lowered by $10,000. Respondent then proceeded to move about the house opening the windows and blinds. At some point, Mrs. Springer and Respondent were at the back of the house. Mrs. Springer was looking out the window and asked how far back the property went. Respondent stated that it went back to the pasture and noted that the property in the back was the extra acre. When Mrs. Springer saw how much property there was, she asked the Respondent, "Can you build back there," Respondent replied, "Yes." Mrs. Springer then mentioned that her daughter and son-in-law were going to be moving from Mobile, Alabama to the Tampa area. The entire conversation between Respondent and the Springers at the open house lasted from 5-10 minutes. The Springers did not express any real interest in the property, and Respondent got involved with other people that were at the open house. When the Springers left the open house, Mrs. Springer was very excited about the property. She knew that her daughter and son-in-law would need a place to live when they moved to the Tampa area, and Mrs. Springer thought that it would ideal for them to build a house on the back acre of the property they had just seen. That night, the Springers called their daughter, and told her about the house and the possibility of the daughter and son-in-law building their home on the additional acre of land. Prior to the open house, the Springers had been working with Les Hammond, a real estate salesman, in an effort to find a home. They had not been satisfied with the homes they had seen which were located on smaller residential lots. The home from which they had just moved was located on two acres of land which had been given to the Springers by Mr. Springer's mother. The two acres were part of a 16-acre tract owned by Mr. Springer's mother. Therefore, the Springers were looking for a home located on a greater amount of land than the normal subdivision lot. At the same time they were looking for a home for themselves, they also had been keeping an eye out for property for their daughter and son-in-law. However, until the open house, the Springers had not been looking for adjoining property or for a house that had additional acreage that could be used by the daughter and son-in-law to build their own residence. After the open house, Mr. Springer called Mr. Hammond, who was considered by the Springers to be "their" real estate agent. Mr. Springer explained that they had found a house that they liked and asked Mr. Hammond if he could show them the house again. Mr. Hammond called Geiger Realty and got the key. Mr. Hammond took the Springers to the property the next day, May 5, 1986. At that time, the Springers explained to Mr. Hammond that a real plus on the house was that another residence could be built on the back acre of land. Mr. Hammond was made fully aware of the Springers' plan to have their daughter and son-in-law build a home on the back acre. The Springers and Mr. Hammond also discussed the work that would have to be done on the house and the repairs that would be necessary. After the Springers and Mr. Hammond left the home they went back to his office and the Springers decided to make an offer on the property. Mr. Hammond prepared the sales contract. The Sales Contract contained the following provision: VII. RESTRICTIONS, EASEMENTS, LIMITATIONS: The Buyer shall take title subject to: Zoning, restrictions, prohibitions and other requirements imposed by governmental authority; Restrictions and matters appearing on the plat or otherwise common to the subdivision ... provided, however, that none of the foregoing shall prevent use of the Property for the purpose of AAR. The language is part of a standard form contract; however, Mr. Hammond inserted the letters AAR, which referred to the zoning of the property, in the blank space after "purpose of." The zoning designation AAR allows one house per 5 acres. Prior to preparing the offer, Mr. Hammond was not aware of the zoning on the property so he called the Respondent who advised him that the property was zoned AAR. Mr. Hammond did not advise the Springers that the zoning would only allow one house per five acres, and he put nothing in the contract which conditioned the offer upon the Springers being able to build a second home on the property. Mr. Hammond explained that he just assumed that another house could be built on the property, notwithstanding the zoning designation, because the Springers had told him that Respondent had told them that another house could be built on the back acre. He also relied on the fact that there were other homes built on one acre plot in that area and that the original house had been built on an acre and a half. Later that night, Mr. Hammond called Respondent and said that the sales offer had been completed and asked when it could be presented to the sellers. Respondent and Mr. Hammond agreed that Respondent would go to Mr. Hammond's office and they would present the offer to the Walkers by telephone conference call. Respondent began the call stating that an offer had been on the property, and Mr. Hammond then explained the terms of the offer. During the conversation, Mr. Hammond did not mention that the Springers had any intention to build a second residence on the property. Further, Mr. Hammond did not advise Respondent of the Springers' intentions or that the Springers had attended her open house. Respondent had no way of knowing that the people who were making the offer were people she had seen at the open house. The Walkers accepted the offer, and on July 26, 1986 the sales transaction closed. Respondent attended the closing as did the Springers. It was the first time that she realized the Springers were people that she had seen at the open house. She had not seen them or spoken to them since the open house. There were no discussions about the viability of building a second residence on the property between the Respondent and the Springers or Mr. Hammond until after the transaction had closed. Mr. Hammond and his daughter Kathy Hamm, who is also a real estate salesperson and works with her father, testified that prior to the closing, Mr. Hammond called Respondent concerning the zoning, and she confirmed that an additional residence could be built on the property. However, Respondent testified that the only conversation she had with Mr. Hammond concerning the zoning occurred after the closing when the Springers learned that the existing zoning classification did not permit building a house on the rear acre. Respondent's testimony is more credible considering the prior inconsistent statement made by Mr. Hammond when his deposition was taken, and his vague recollection of the alleged telephone conversation. The testimony of the witnesses regarding what was said at the closing was also contradictory. Ms. Walker, Ms. Alday, the closing agent, and the Respondent each testified that there was no conversation at the closing regarding constructing another house on the property. However, Ms. Hamm and Mr. Hammond testified that Mr. Springer asked Respondent about building another house on the property and Respondent responded that they could. Neither Mr. Springer nor Mrs. Springer recalled asking any question about building on the property, but testified that Respondent simply announced "and you can build on that property, too." Considering the testimony and demeanor of the witnesses, I find the testimony of the Respondent and Ms. Walker to be the most reliable. Ms. Walker sat next to respondent during the closing and left the room with the Respondent. Ms. Walker was in a position to hear anything that Respondent may have said, and Ms. Walker was quite certain that nothing was mentioned about building anything on the back acre of the property. After the closing, Mr. Springer and his son-in-law talked to Hillsborough County building officials about obtaining a permit to construct a residence on the back acre of land and discovered that the zoning of the property was such that another residence could not be built on the property. There was no evidence presented that there were any other limitations on building on the back of the property. Indeed, on the night of the closing, Mr. Springer advised Mr. Mickler that he was thinking about building a garage/workshop in the back to house his antique automobiles. There was no evidence presented to suggest that he could not have built the garage behind the house. The Respondent never marketed the property as being anything other than a single family residence and did not misrepresent its zoning limitations. The Springers simply assumed that the extra acre could be used for a second residence. The Springers never asked the Respondent whether a second residence could build on the rear acre, and she never told them that another residence could be built on the property. Although Respondent indicated to Ms. Springer at the open house that they could "build" in the back of the house, there was no intent on Respondent's part to mislead the Springers into believing that a second home could be built on the property. Ms. Springer admitted that she did not tell Respondent that what she was thinking of building was another house. Further, the Springers apparently were not certain that another house could be built on the property when they first told Mr. Hammond about the house. When Mr. Springer was asked what he mentioned to Mr. Hammond about the property, Mr. Springer replied, "Well, that we liked it okay and it was nice that there was an extra acre that we probably could build on. He was aware of our intentions." (e.s.)(T-26) Therefore, it does not appear that the Springer's relied on Respondent's comment at the open house as establishing that a second home could be built on the property. Indeed, the Springers relied on Mr. Hammond to take care of their interests, and he was the only one who knew what their plans were. Finally, Mr. Springer stated that even if he had known that another residence could not be built on the property, he didn't know whether that knowledge would have kept him from purchasing the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against the Respondent. DONE and ORDERED this 24th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3992 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Rejected as contrary to the evidence. Rejected, to the degree that it states that Mr. Hammond was advised by Respondent that a second single-family residence could be constructed on the property, by contrary finding based on the evidence. Accepted. Rejected, as not supported by the evidence. Accepted. Rejected for the reasons previously stated. Rejected as immaterial since Respondent was unaware that the Springers' desired to build a second residence on the property. Rejected, to the extent it indicates that Respondent was aware of the Springers' plan, as contrary to the evidence. Rulings on Respondent's Proposed Findings of Fact: 1.-7. Accepted, generally. Accepted to the degree it constitutes a finding of fact. Accepted, generally. Accepted, generally. Rejected as irrelevant. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 323802 A. J. Musial, Jr., Esquire Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Acting Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
The Issue Whether the Notice of Intent to Modify Driveway Connection, in which Respondent, Florida Department of Transportation (“FDOT”) seeks to close a driveway on Petitioner’s property to eliminate potential traffic issues and reduce the number of access points to the roadway, is consistent with sections 334.044(14), 335.181, and 335.182, Florida Statutes, and Florida Administrative Code Rules 14-96.011 and 14-96.015.
Findings Of Fact The Witnesses Mr. Maassen testified that John and Kathryn Maassen were his parents and are deceased.6 Although an argument could be made that Mr. Maassen was not the proper party to this case, no one raised this as an objection, and both parties actively participated in the hearing. Nicolas Leon is employed by FDOT as a roadway engineer supervisor III. He holds a bachelor’s and master’s degree in civil engineering, and is a licensed professional engineer. Mr. Leon’s duties and responsibilities include being the engineer of record and/or project manager on multiple transportation projects. He oversees a team of roadway and traffic designers, project managers, and engineers. Leanna Schaill is employed by FDOT as a traffic services access management manager for District One. She has a degree in mechanical engineering, and manages a team of four FDOT employees who review all the access management applications for driveway connection permits throughout District One. Joel B. Hobbs is employed by FDOT as an operation program engineer. He works at the FDOT maintenance office which is west of the property at issue. FDOT’s Process FDOT conducted an analysis of SR 70 in DeSoto County, Florida by evaluating the roadway, side streets, median openings, access connections, intersections, and intersections signalizations. A roadway project was formulated to bring the facility into compliance with state statutes and rules. 6 Mr. Maassen’s Exhibit N was a copy of Warranty Deed regarding “Lots 12, 13, and 14 of Block B, Fountain Park Subdivision, Arcadia Florida,” executed between Elon N. and Alesia J. Duncan to John S. and Kathryn Maassen dated April 21, 1961. FDOT is charged to use a forward-looking process to bring all state roadways into compliance with FDOT’s design standards. These design standards, set forth in FDOT’s statutes and rules, are to protect and ensure the public health, safety, and welfare for all users of the state roadway, including vehicles, pedestrians, and bicycles. FDOT is required to follow the Access Management Act found in chapter 335.18, and 14-96 and 14-97 to evaluate the roadway. Property owners who have property directly adjacent to a state roadway share a property boundary with the state roadway. Those property owners are entitled to reasonable and adequate access to their property. However, the property owner is not entitled to unregulated access to that property. See § 335.181(2), Fla. Stat. FDOT was statutorily directed to adopt rules that provide an administrative procedure for closing unpermitted connections. See § 335.182(2), Fla. Stat. As found in rules 14-96 and 14-97, an unregulated access, such as a driveway, is one that has not been permitted by FDOT, and may create safety and operational concerns because it may not be constructed or designed in compliance with FDOT’s standards. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14- 96.011(3)(a). A driveway is grandfathered if it was in existence prior to July 1, 1988, when access permits were first required. See Fla. Admin. Code R. 14-96.011(3)(a). To retain the grandfather status, a driveway must be consistently used by the owner or business proprietor. If the property use is changed, that property loses the grandfathered status. When a property use changes, the owner has the ability to apply to FDOT for an access permit for the access connection. FDOT reviews those applications and may grant or deny the application. Driveway confusion and driver confusion occur when a driver “is presented with too many choices to make in a short period of time due to the inefficiency or difficult driveway location.” Such driveway confusion could cause a driver to make a wrong choice as to when, where, and how to move their vehicle within a driveway area, attempt to enter a driveway, or exit the driveway into the flow of traffic. FDOT’s Proposed Project and Property FDOT proposed a “roadway improvement project reconstruction on SR 70 in DeSoto County,” Florida. The project is approximately 1.8 miles in length beginning just east of Peace River, and heading east into Arcadia, Florida. The project includes both the eastbound and westbound lanes of SR 70, a divided roadway, sometimes called “one-way pairs.” FDOT proposed to: reconstruct the pavement through repaving the roadway; install a new closed-drainage system for storm water; install a new sanitary sewer line; create new signage; improve pavement markings; install signalization; and provide lighting improvements. Additionally, at the intersection of SR 70 and Baldwin Avenue (“Baldwin”), FDOT proposed to install a west-bound right turn lane onto North Baldwin. For the majority of the project, FDOT proposed to install eight-foot- wide ADA7 compliant sidewalks with ramps at the intersections. However, in the area where the 100-foot driveway would be closed, a six-foot-wide sidewalk with intersection ramps would be created along the curve in SR 70, based on the limited right-of-way. Ms. Schaill testified that using the “same criteria and regulation, statutes, and Administrative Code,” her team analyzed 120 driveway access connections along the proposed project corridor. Of those 120 driveway access connections, 14 were identified for modification due to safety and operational concerns. 7 The term “ADA” was understood to refer to the Americans with Disabilities Act of 1990, a civil rights law that prohibits discrimination based on disability. Five of the 14 driveway access connections were identified for closure due to safety and operational concerns. The property containing the approximate 100-foot driveway with direct access to SR 70 at issue here is a 0.43-acre parcel located at the northeast corner of Baldwin and SR 70, Arcadia, Florida. The 100-foot driveway has been in use since the 1960s. The property was a gasoline station for many years. However, in the 1990s, the property use changed from a gasoline station to a sign shop, known as DeSoto Sign (“Shop”). Petitioner’s Objection and Position Mr. Maassen objected to FDOT’s proposed closure of the Shop’s 100-foot driveway with direct access to SR 70. The Notice used the term “modification,” yet it also contained the sentence: “[T]he existing driveway will be closed, as per the attached plans.”8 Mr. Maassen’s position was that the terms: “modification” and “closure” are not the same. The Notice provided that the closure would “reduce the number of access points to the roadway and eliminate potential traffic issues.” The Notice also provided that the potential modifications would “improve safety or traffic operations on” SR 70. Mr. Maassen offered 10 “FLORIDA TRAFFIC CRASH REPORT[s]” dated May 2016 to December 2020 to support his contention that automobile crashes at or near the Shop were not the issue. He alluded that Exhibit “I,” a crash report from May 2017, provided the only instance where a bus was parked parallel to SR 70 on the 100-foot driveway. The report mentioned the parked bus as a contributing factor to a two-car accident. However, it is noted that the crash report is over four years old. 8 As indicated above, only one drawing or plan was attached to the Notice. Mr. Maassen acknowledged that a long-bed blue tractor-trailer has parked (and still parks) parallel and next to the Shop, along Baldwin. He also acknowledged at times the tractor-trailer traveling westbound on SR 70 may have maneuvered into that parking location by blocking traffic on SR 70. It is Mr. Maassen’s belief that FDOT is using that tractor-trailer as its basis for the proposed closure of the 100-foot driveway. Mr. Maassen testified that the tractor-trailer driver should be educated and/or ticketed by law enforcement to stop the parking maneuver. Mr. Maassen further testified that if the driver could not be educated as to how to drive or park appropriately, his license should be revoked. Mr. Hobbs, the only witness to actually see the tractor-trailer parking maneuver, conceded that “within the last year,” the tractor-trailer is “no longer pulling out directly onto 70. He is pulling up adjacent to the through lane and starting his maneuvers to back up into the parking position.” The tractor-trailer is now traveling south on Baldwin, pulling onto the Shop property via the Baldwin connection, and maneuvering into the parallel parking position next to the Shop. Mr. Maassen had no idea whether the 100-foot driveway, with the direct access to SR 70, was permitted at the time it was constructed or since that time. He made the point that someone would not “go out and cut a hole in a driveway for a roadway without somebody knowing about it.” Mr. Maassen acknowledged the speed limit on SR 70 in front of the Shop was 45 miles per hour. Further, Mr. Maassen pointed to section 335.184(3), and argued that when the roadway was repaved, or work done on the Shop property, “[T]here’s been no reason to make a change.” However, he did not provide any testimony as to when any re-pavement or work was done on SR 70 or on the Shop property. His position is the 100-foot driveway gives the property reasonable access for Shop customers. Mr. Maassen asserted FDOT's proposed action leaves him without "reasonable access" to the Shop property. He testified: I cannot take a delivery vehicle off a side street, make a U-turn, turn it around on that driveway and bring it back out on the side street. A vehicle of any size or nature, any of the businesses that the sign shop actually works with that has a vehicle with a trailer will be limited. There’s a canopy in the middle of that driveway which prevents you from making any type of a U- turn out there with any type of a dual vehicle. We need to have a complete access through the property from one side to the other, not just being able to pull onto one side. This is not a retail outlet. This is an operational facility where they’re doing work on vehicles out front that must be able to be brought across the driveway, not just pull on it and back out. His contention is that this action (maneuvering around the Shop property) “is reasonable access for customers.” However, maneuvering on the Shop property is considered internal circulation, and not what FDOT is charged with regulating. FDOT’s Position FDOT is the state agency responsible for regulating access between state roads and private property abutting those roads. See §§ 335.18 through 335.188, Fla Stat. SR 70 is a part of the Florida state highway system. The Shop’s direct connection, meaning the access, or driveway, connecting the parcel onto SR 70, runs parallel to SR 70 and is approximately 100 feet long, with a curb somewhere in the middle. The approximate length of the curb was not provided, nor was its existence challenged. This direct connection begins approximately 10 feet from the intersection of SR 70 and Baldwin. The Shop’s second connection (“second driveway”) lies on Baldwin and is approximately 75 feet long. This is an indirect connection as it connects the Shop property to Baldwin, the side street which directly connects to SR 70. The second driveway is not subject to any changes in the Notice. SR 70 is classified as a class 5 road. See Fla. Admin. Code R. 14- 97.003(1), Table 2. The class 5 designation is assigned to roadways that “are controlled access facilities where adjacent land has been extensively developed and where the probability of major land use change is not high.” See Fla. Admin. Code R. 14-97.003(2)(b)4. The rule provides that for a driveway connection on a class 5 road, which has a posted speed limit of 45 miles per hour, there must be at least 245 feet between the access connections on driveways, side streets, or adjacent properties. Ms. Schaill confirmed that at the intersection of SR 70 and Baldwin, the speed limit is 45 miles per hour. Further, she testified that the distance between the Shop’s 100-foot driveway abutting SR 70 and the Baldwin intersection is approximately 10 feet. Thus, the Shop’s 100-foot driveway is an unregulated access, in that it does not meet the spacing requirement identified in rule 14-97.003(2)(b)4. Ms. Schaill testified that this unregulated access is FDOT’s reason for closing the driveway. As provided in paragraph 9 above, “driveway connections on state roads must be permitted or grandfathered.” See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). There is no question that the gasoline station’s direct connection was in place prior to 1988. However, the use of the property changed to the Shop in the mid-1990s without an access permit application being submitted to or granted by FDOT. Ms. Schaill testified the Notice was FDOT’s second letter communicating the intent to modify the Shop’s property access. Further, FDOT staff met with Mr. Maassen or his brother at the Shop property to discuss the proposed project. Numerous telephone conversations occurred between Mr. Maassen and FDOT staff regarding the proposed project. Ms. Schaill credibly testified to the statutes and rules that FDOT must follow when projects are proposed. To paraphrase the language of section 335.181(1), she provided that the: Access Management Act is to protect all users of the state highway system, insofar as to ensure that public health, safety, and welfare of all users, which includes vehicular traffic, pedestrian traffic, and bicycle traffic on a state roadway, while also allowing for the safe and efficient mobility of people on a state roadway. Further, Ms. Schaill specified section 335.181(2) provided that “every property owner adjacent to the state roadway, shares a property boundary with the state roadway [and] is entitled to reasonable and adequate access to their parcel.” However, the property owner is not “entitled to unregulated access to that parcel.” An unregulated access to a property is one that has not been permitted by FDOT. Ms. Schaill testified that such unregulated access to a property “may create safety and operational concerns or is not constructed or designed in accordance with the Department’s standards for driveway connections.” According to Ms. Schaill, a “property owner is entitled to and has a right to the minimum number of connections required to provide safe and efficient ingress and egress to their parcel, which can be satisfied by either direct or indirect driveway connections.” In this instance, the indirect connection could be made for ingress to the Shop from Baldwin by either turning left or right onto the Shop property, and for egress by turning left out of the Shop property onto Baldwin, which connects directly to SR 70. Ms. Schaill confirmed that section 335.181(2)(a) requires FDOT to provide a property owner “adjacent to the state roadway reasonable and adequate access to the state roadway either by indirect or direct means. The access is - - - permissible access would have to be regulated by the Department, and we could not approve an unregulated access.” Ms. Schaill's testimony was clear, concise, and credible as to the statutes and rules employed by FDOT in making the determination regarding the closure of the 100-foot driveway.
Conclusions For Petitioner: David Lambert Maassen, pro se 140 South Osceola Avenue Arcadia, Florida 34266 For Respondent: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order approving the closure of the Shop’s 100-foot driveway as part of the State Road 70 project. DONE AND ENTERED this 28th day of September, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2021. COPIES FURNISHED: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399 Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 David Lambert Maassen 140 South Osceola Avenue Arcadia, Florida 34266 Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent Division of Beverage issue the type 11-C license to petitioner without further delay. Respectfully submitted and entered this 24th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Charles A. Nuzum Division of Beverage Johns Building. Tallahassee, Florida
Findings Of Fact Talbott and Drake, Inc. is and was at all times alleged herein a registered real estate broker corporation. William F. Talbott is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Paul P. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Helen C. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. On or about January 18, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated a contract for sale and purchase between the High Ridge Water Company -- John H. McGeary, Jr., sellers, and William Montaltos and Genevieve L. Montaltos, his wife, buyers, for the purchase of lot in a new housing area known as River Forest in the Boca Raton area, Palm Beach County. A copy of said contract, Petitioner's Exhibit 1, is received into the record pursuant to the Stipulation of the parties. Said contract, Petitioner's Exhibit 1, was subject to the declarations of restrictions filed by High Ridge Water Company as seller on June 28, 1976, wherein, in Paragraph 7, the developer retained the right to approve or disapprove the plans and specifications for the construction of any structure, building, fence, wall or sign in the River Forest area. A copy of said declarations of restrictions is received into the record as Petitioner's Exhibit 2, pursuant to the Stipulation of the parties. As a part of the restrictions and provisions of the contract, the purchasers, Mr. and Mrs. Montaltos, were required to use a builder selected from a list of designated builders, approved and designated by Talbott and Drake, Inc. and the High Ridge Water Company. Mr. and Mrs. Montaltos decided to build on the subject property and contacted numerous builders designated by Talbott and Drake, Inc. to submit the bids for the construction of a home on the property. On or about June 9, 1976, the McGeary partnership, as developer of the River Forest area, entered into a joint venture agreement with Group Six Developers Collaborative, Inc., whereby Group Six Developers Collaborative, Inc. purchased lots in the River Forest area and agreed to pay Talbott and Drake, Inc. a five-percent commission on all homes constructed on said lots by Group Six Developers Collaborative, Inc. in the River Forest area. A copy of said joint venture agreement is received into the record as Petitioner's Exhibit 3 pursuant to the Stipulation of the parties. Petitioner's Exhibit 3 recites on the first page of said agreement as follows: WITNESSETH: WHEREAS, by that certain Purchase Agreement intended to be executed this date, BUILDER (Group Six Collaborative, Inc.) is agreeing to purchase certain real property as set forth herein, a copy of which Purchase Agreement is attached hereto as Exhibit 1; . . . (emphasis added) WHEREAS, the parties hereto are desirous of forming a joint venture for the purpose of finan- cing, constructing and selling single family residences upon the property described in Exhibit 1; NOW THEREFORE, in consideration of the pro- mises and of the mutual covenants of the parties hereto, and for other good and valuable considera- tion, the parties agree as follows: 9. BROKER. The parties agree that TALBOTT AND DRAKE, INC., a Florida real estate brokerage corporation, shall have an exclusive listing agree- ment with BUILDER, as owner and joint venturer, for the sale of residences to be constructed pursuant to this Agreement, a copy of which Agreement is attached hereto as Exhibit 2. As a commission for their services, which shall include but not be limited to, advertising, manning model houses, showing receiving of deposits, qualifying prospects, assisting in obtaining financing for purchasers, they shall receive five percent (5 percent) of the pur- chase price, according to the provisions contained in Exhibit 2. The joint venture agreement, Petitioner's Exhibit 3, is clearly limited to houses to be constructed on the lots purchased from the McGeary partnership. The agreement does not constitute an agreement to pay Talbott and Drake, Inc. a fee of five percent of the construction cost of any custom home built by one of the designated builders on a lot purchased by an individual. When Mr. and Mrs. Montaltos received the bid statement from Group Six Developers Collaborative, Inc. there was noted thereon: "Add Real Estate Commission as per Talbott and Drake contract." A copy of said bid statement is received into the record as Petitioner's Exhibit 4 pursuant to the Stipulation of the parties. Although Mr. and Mrs. Montaltos were informed that Talbott and Drake, Inc. was to be paid a ten-percent commission by the seller on the sale of the property to Mr. and Mrs. Montaltos, they were at no time informed directly by the Respondents that the builders on the "approved list" were required to pay a five-percent commission to Talbott and Drake, Inc., nor that the said five- percent commission would be passed on to Mr. and Mrs. Montaltos when they contracted with an "approved" builder to construct a home on the subject property. On or about February 4, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated the contract for sale and purchase between High Ridge Water Company, as seller, and Donald James Kostuch and Mary Louise Kostuch, his wife, buyers, for purchase of a lot in the River Forest area of Palm Beach County. A copy of said contract is received into the record as Petitioner's Exhibit 5 pursuant to the Stipulation of the parties. Mr. and Mrs. Kostuch were required by the contract to select a builder from an approved list of designated builders approved and supplied by Talbott and Drake, Inc. and seller, High Ridge Water Company. Mr. and Mrs. Kostuch selected Snow Realty and Construction, Inc. from the list supplied by Talbott and Drake, Inc. Snow Realty and Construction, Inc. had an agreement with the McGeary partnership and Talbott and Drake, Inc. similar to that outlined in the joint venture agreement between the McGeary partnership in Group Six Developers Collaborative, Inc., Petitioner's Exhibit 3, whereby Snow Realty and Construction, Inc. agreed to pay Talbott and Drake, Inc. a five-percent commission on any residence that Snow Realty and Construction, Inc. built in the River Forest area. The bid supplied by Snow Realty and Construction, Inc. on March 7, 1977, to Talbott and Drake, Inc. contained a listing of real estate commission to Talbott and Drake, Inc. in the amount of $3,652. A copy of said bid statement is received into the record as Petitioner's Exhibit 6 pursuant to the Stipulation of the parties. The Kostuchs were advised of a five-percent fee to be paid by the builder by a salesman working for another broker who first introduced the Kostuchs to the real property in River Forest. The salesman advised the Kostuchs prior to their entry into the contract for the purchase of the lot in River Forest in which they agreed to limit their choice of builder to one approved by the McGeary partnership and Talbott and Drake, Inc. This disclosure would be sufficient to comply with the provisions of Rule 21V-10.13, Florida Administrative Code, because the fee was revealed by a salesperson involved in the transaction prior to the execution of the contract under which the favor, if any, was granted. Talbott and Drake, Inc., in addition to performing services as listing agent for the sale of homes in River Forest, also functioned as the prime developer in this project pursuant to an agreement with High Ridge Water Company and the McGeary partnership. Regarding the Montaltos' transaction, the limitation of the owners to the use of one of the approved builders constitutes the granting or placement of favor, because it narrows the competition to one of five builders out of all the builders available in the Fort Lauderdale area. The affidavits introduced indicate that, notwithstanding the absence of a written agreement, the designated builders had agreed to pay to Talbott and Drake, Inc. a fee of five percent of the cost of construction of any custom home as compensation for the efforts of Talbott and Drake, Inc. in developing the property. While compensation for these services is reasonable, it still constitutes a fee to be paid Talbott and Drake, Inc. from one of the five designated builders who would benefit from the contract. The potential adverse effect of this arrangement was to transfer a cost generally allocated to the cost of the lot to the cost of the house. Therefore, people shopping for a lot could be misled in the comparison of similar lots in different subdivisions in the absence of being advised of the fee to be paid by the builders to Talbott and Drake, Inc. However, the evidence shows no attempt to keep this fee a secret and thereby mislead buyers. The existence of such a fee is referred to in sales literature prepared by Talbott and Drake, Inc. The Kostuchs were advised of the fee by a participating salesman for another real estate company. The builders set out the fee as a separate cost item as opposed to absorbing it in general costs within their bids. While the Respondents could not produce evidence that the Montaltos' had been advised of the existence of the fee, and the Montaltos' testified that they had not been advised, this appears to be an isolated incident as opposed to a course of conduct. Notwithstanding proof of the above, no evidence is presented that the Montaltos' contracted with a designated builder to build their house, and that a designated builder paid a fee to Talbott and Drake, Inc. To the contrary, the testimony of William Talbott was that the Montaltos' had breached the terms of their contract regarding the use of a designated builder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission issue a letter of reprimand to Talbott and Drake, Inc. which, in fairness to the Respondents, should set out the specifics of the violation and to further apprise other registrants of the potential dangers of such fee arrangement. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Charles M. Holcomb, Esquire 653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922
The Issue The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.
Findings Of Fact Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning: RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification. On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230 Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance 11.-12. Rejected as unsupported by the weight of evidence Accepted in substance Rejected as irrelevant and immaterial Respondent's Proposed Findings of Fact 1.-2. Accepted in substance Rejected as irrelevant and immaterial Accepted in substance 5.-11. Rejected as irrelevant and immaterial 12. Accepted in substance COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 John S. Koda, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376 Richard Tritschler, Esquire General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
The Issue The issues in this case are those announced by the Administrative Complaint brought by the Petitioner against Respondent claiming that the dirt drive entrance to the Ugly Duckling Rent-A-Car at 2555 U.S. 1 South, St. Augustine, Florida, is an unpermitted drive connection used for commercial purposes. It is further alleged that it is, by its nature, a residential driveway that is used in a commercial endeavor and that it does not meet design standards. The stated authority for these accusations are Sections 335.187 and 335.1825, Florida Statutes.
Findings Of Fact On October 2, 1979, Leroy E. Wall, Jr., and his wife Freda purchased the property which is in dispute in this case from Alex Hein and Virginia Hein, his wife. That property is located in St. Johns County, Florida, and its dimensions include approximately 300 feet of frontage on U.S. 1, also known as State Road 5. The frontage runs roughly north and south. The east-west depth of the property is approximately 350 to 360 feet. U.S. 1, for about 20 years, has been a four-lane road at this location with a median separating the northbound and southbound lanes. The property in question is on the western side of U.S. 1 and the southbound lane of that highway passes in front of the property. Petitioner holds a right-of-way from the white line on the shoulder of the road 38 feet inward. It has maintenance responsibility for a five foot strip inward from that white line. At the time Mr. Wall and his wife purchased the property in question, there was a residence located on the property with a free standing garage. Respondent's Composite Exhibit No. 1 admitted into evidence contains a copy of the warranty deed from the Heins to Mr. Wall and his wife. It also shows a description of the property through a survey done on November 14, 1984. It was the intention of Mr. Wall to have the property rezoned from residential to commercial. In addition, he had intended to build a commercial building and to seek approval of Petitioner for a driveway permit associated with that commercial venture. That driveway permit was approved on November 1, 1979. A copy of the driveway permit may be found in Petitioner's Composite Exhibit No. 3 admitted into evidence. The date of approval of that permit is November 1, 1979. The driveway permit and a small drawing reflect the two paved driveways associated with the intended commercial building. It shows frontage in the amount of 165 feet as opposed to the 300 foot expanse that constituted the entire parcel which Mr. Walk and his wife had bought from the Heins. Nonetheless, Mr. Wall is confident that the Petitioner was made aware of the entire 300-foot expanse when he sought the permit. His recollection of those events is credited. As reflected in Respondent's Composite Exhibit 1, a report and recommendation was made by the zoning board suggesting to the Board of County Commissioners that they approve the rezoning of the subject property. That recommendation dates from December 10, 1979. The zoning change was effected. The residential building and detached garage was used by a tenant of Mr. Wall's who was in the import business. Subsequent to that time Vernard W. Fletcher, Jr., who owns Ugly Duckling Rent-A-Car became a tenant at that location on July 1, 1983. The commercial building that had the two paved drives permitted on November 1, 1979 has four tenants. The dirt driveway which enters U.S. 1 from the residence with the detached garage has been there from the time of the purchase by the Walls from the Heins until the present. Mr. Fletcher has described the peak usage of that driveway as 20 trips per day in 1987. In the period July 1, 1988, through June 15, 1989, the number of trips has dropped to 15 cars a day. Mr. Fletcher's explanation of the number of trips is accepted. July 1, 1988, through June 15, 1989, describes the period from the advent of Section 335.187, Florida Statutes, (1988), until the Administrative Complaint was brought against the Respondent on June 15, 1989, as described in the statement of the issues. As Mr. Fletcher and Mr. Wall both explain, the dirt drive is used mostly for ingress. One of the paved drives associated with the commercial building is used for egress onto U.S. 1. On March 16, 1989, Respondent received notice from the Petitioner that the dirt driveway was an unacceptable access point onto U.S. 1. This correspondence was received by Mr. Fletcher on March 17, 1989. It sets forth the same basis of concern as announced in the Administrative Complaint which was prepared on June 15, 1989. Marshall Sander who is a permit engineer for the Lake City District of the Petitioner testified at the hearing. Although he did not confirm in absolute terms the expectation of the Petitioner as to the type driveway that it would accept for permitting, it is clear that some other form of driveway than the present type is contemplated. Mr. Sander's remarks to Mr. Wall made it obvious that the Petitioner is more likely to look with favor on a paved driveway with deceleration lane than any other form of improvement. This would cost as much as $15,000. A not-to-scale drawing of the immediate area is found as Petitioner's Exhibit No. 5. It depicts the commercial building with its two paved driveways and the Respondent's site with its dirt driveway. It also shows the approximate location of a shopping plaza which was under construction and expected to open in October 1989, which is 500 feet north of the property in question. That shopping center is located on the same side of the road as the property that is at issue. There is a traffic signal at Lewis Point Road and U.S. 1, the location of the new shopping center. That traffic control device protects automobiles which are exiting the location of the Respondent and the commercial properties adjacent to that location which are leased by Mr. Wall. Petitioner's Exhibit No. 7 is a series of photographs which depict the site in question with descriptions of the exact nature of those photographs specifically set out. Petitioner's Exhibit 8 also contains a series of photographs. The first photograph is one of Moultrie Plaza which has a Publix food store and 14 other tenants with the possibility of 8 additional tenants in the future. This shopping plaza opened in January 1989 and is approximately two miles south of the Respondent's business location. The shopping plaza which is immediately north of the location in question has a Food Lion grocery store, a McDonald's restaurant, a bank and several other retail shops. It is located on the same side of U.S. 1. Petitioner's Exhibit No. 9 contains other pictures associated with the basic location of the business in question. Mr. Sander's concern about the use of the dirt driveway in a commercial application relates to the edge of pavement drop-off and the formation of ruts that develop with the kick-out by wheels that spin as cars are leaving or pulling into the location and under braking, and the fact that they slide and move the gravel material in the dirt driveway. In his analysis this creates a possible safety hazard. There is no evidence that any accidents have ever occurred because of the use of this dirt driveway or any safety problem associated with its use. Mr. Fletcher and Mr. Wall have no recollection of such events and the Petitioner presented no indication that accidents or other safety problems had occurred. Mr. Sander also was of the opinion that Mr. Wall should have revealed the existence of the additional 135 feet of frontage when the 165 feet of frontage associated with the commercial building was set out in the attachment to the permit for the two paved driveways that have been mentioned before. Again, the facts are found that the 300 foot frontage was made known to the Petitioner based upon the testimony given by Mr. Wall. Section 385.187(1), Florida Statutes (1988), provides that unpermitted connections to the state highway system, to include U.S. 1, in existence before July 1, 1988, which had been in continuous use for a period of one year or more do not require permits. The dirt driveway was in existence before July 1, 1988, and was in continuous use for a period of one year or more. However, that same section speaks in terms of the ability of the Petitioner to require a permit in those instances where the connection undergoes a significant change in the use, design, or traffic flow of the connection or of the state highway that provides access. Beyond July 1, 1988, the use, design, or traffic flow of the driveway connection has not significantly changed. The use and design of the state highway has not significantly changed. The point of dispute is whether the traffic flow on that state highway has changed in a significant way. Notwithstanding the existence of two residential developments known as St. Augustine South and St. Augustine Shores, the two shopping plazas that have been described and other activities in the general vicinity, it was not shown that the traffic flow had increased in a significant way beyond July 1, 1988, up until June 15, 1989, the point at which the administrative complaint was brought or for that matter up until the time of the final hearing. Moreover, as stated, there is no suggestion that the driveway has presented a safety hazard in that time frame, particularly not when taking into account the preference to use the paved drives associated with the commercial building in the egress. That usage is facilitated by the fact that some of the equipment that is being rented is brought up one of the paved driveway exits from an area behind the commercial building. This set of circumstances is considered in light of the fact that the traffic signalization at Lewis Point Road and U.S. 1 protects a person entering U.S. 1 southbound.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which dismisses the Administrative Complaint. DONE and ENTERED this 19th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1989. APPENDIX CASE NO. 89-3898 Petitioner's Facts Petitioner's facts in paragraphs 1, 2, 3 and 4, are subordinate to facts found. Paragraph 5 is contrary to facts found. Paragraph 6 is accepted but it is not essential that it be found as a fact. Paragraph 7 is subordinate to facts found. Respondent's Facts Respondent has described facts it wishes to have found in two categories. Those categories are a preliminary statement of facts not in dispute and a category associated with the issues deemed to be in dispute. These suggested facts are subordinate too the facts found in the recommended order. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Frederick L. Rice, Esquire 5611 St. Augustine Road Jacksonville, Florida 32207 Ben Watts, Interim Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
